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Past Language and the Law Forums
2021 - Forum on Language and the Law: Legal Interpretation
CONVENED BY
Scott Jarvis
Chair, Department of Linguistics
WHERE
Virtual on Zoom
WHEN
Friday
April 16, 2021
The theme for the 2021 Forum on Language and the Law is legal interpretation, and this includes an emphasis on corpus linguistic methods for determining original and ordinary meaning in statutes, contracts, trademark agreements, the Constitution, and other important documents. The speakers at the 2021 Forum include two linguists, a law professor, and a Utah Supreme Court Justice. The first linguist, Jesse Egbert (Northern Arizona University), will offer insights into best practices in corpus-based linguistic research dealing with questions of original and ordinary meaning. The law professor, Lawrence Solum (Georgetown University), will discuss original and ordinary meaning from a legal perspective, focusing particularly on constitutional law. The second linguist, Tammy Gales (Hofstra University), will highlight linguistic principles and methods while emphasizing her work on statutory interpretation in trademark cases. Finally, Associate Chief Justice Tom Lee (Utah Supreme Court) will discuss the empirical methods he has used and advocated for when dealing with questions of legal interpretation.
The information and methods presented in this symposium will help lawyers, linguists, and judges improve their abilities to analyze and evaluate linguistic evidence related to legal interpretation in multiple domains of civil and criminal law.
2019 - What Lawyers Need to Know About Language and Linguistics
CONVENED BY
Scott Jarvis
Chair, Department of Linguistics
WHERE
University of Utah - Carolyn Tanner Irish Humanities Bldg, Room 109
WHEN
Thursday
April 25, 2019
The 2019 Forum on Language and the Law features three keynote speakers: a linguist, a lawyer, and a judge. The linguist, Roger W. Shuy (Distinguished Professor Emeritus, Georgetown University), is the world’s foremost forensic linguist and is commonly referred to as the father of American forensic linguistics. He will demonstrate some of the critical types of linguistic evidence that are often overlooked in criminal cases. The lawyer, Janet Ainsworth (J. D. Eshelman Professor of Law, Seattle University), is the current Vice President of the International Association of Forensic Linguistics and the author of several influential studies on language and power. She will describe how language typically works in cases of power asymmetry, and how this often results in the inability of ordinary civilians to exercise their rights while being interrogated by the police. The judge, the Honorable Lynn W. Davis (Utah Fourth District Court), is an expert on the needs and challenges of people with limited English proficiency (LEP) in the U.S. legal system, and one of his publications has become required reading for new judges across the country. He will focus on due process for LEP individuals, and particularly on their need for highly qualified interpreters.
In addition to outlining these problems and giving copious examples from case law, each speaker will also offer valuable, state-of-the-art solutions. The information and methods presented will help lawyers and judges improve their abilities to analyze and evaluate linguistic evidence, protect individuals’ rights, and allow individuals with limited English proficiency to participate more fully in the legal process.
2018 - Forum on Language and the Law: Non-native Speakers of English in the Legal System
CONVENED BY
Scott Jarvis
Chair, Department of Linguistics
WHERE
University of Utah - Carolyn Tanner Irish Humanities Bldg, Room 109
WHEN
Friday
April 20, 2018
In a society that is becoming increasingly linguistically diverse, the treatment of non-native speakers of English has become a high priority. This forum will introduce the audience to a relatively new branch of linguistics—forensic linguistics—that functions at the crossroads of language and the law, and will give special attention to the status of non-native speakers of English in the US legal system. The purpose of the forum is to initiate a dialog between linguistics experts and stakeholders, with a focus on three critical real-world concerns: non-native speakers’ comprehension of the Miranda rights, the quality of court interpreting, and linguistic discrimination in the workplace.
2021 - Forum on Language and the Law: Legal Interpretation Schedule
9:00am Welcome and Opening Remarks, Professor Scott Jarvis and Dean Elizabeth Kronk Warner, University of Utah
Scott Jarvis
Scott Jarvis was born in Arizona and grew up in Missouri. He earned an BA in Linguistics at Brigham Young University in 1991, an MA in Applied Linguistics at Indiana University in 1993, and a PhD in Linguistics at Indiana University in 1997. His PhD concentration was Second Language Acquisition, and his PhD minor was Semiotics.
Scott was hired by the Department of Linguistics at Ohio University in 1998 and worked there until 2017, receiving promotions to the rank of Associate Professor in 2003 and Professor in 2013. He also served as Department Chair for five years, from 2004 until 2009. From the middle of 2009 until the middle of 2010, he spent his sabbatical in the Centre for Applied Language Studies at the University of Jyväskylä, Finland. He began working in the Department of Linguistics at the University of Utah in 2017, where he holds the rank of Professor and is currently serving as Department Chair.
His research concentrations include crosslinguistic influence and lexical diversity. In the domain of crosslinguistic influence, he has developed frameworks for exploring conceptual transfer and confirming crosslinguistic influence in cases where it is difficult to detect or is confounded by competing variables. In the domain of lexical diversity, he has concentrated on developing an adequate, multidimensional construct definition of this phenomenon and an accompanying set of measures that account for how lexical diversity is perceived and how it contributes to the quality of both spoken and written language. He has published articles in several of the top journals in Second Language Acquisition and Applied Linguistics, has co-edited three books, and has co-authored a book with Aneta Pavlenko titled Crosslingusitic Influence in Language and Cognition. He is currently conducting research with Aneta Pavlenko and Beth Hepford on the relationship between language proficiency and non-native speakers’ understanding of the Miranda warning.
Scott’s professional service has given him the opportunity to serve in a number of positions, including but not limited to the role of Chair of the Research Interest Section for TESOL (2001-2002), Associate Journal Editor for Language Learning (2007-2011), Board Member and Associate Executive Director for Language Learning (2011-2015), Executive Committee Member for the American Association for Applied Linguistics (2014-2016), and Editorial Board Member for various journals. He is currently the Executive Director for Language Learning and the Chair of the Resolutions Committee for the American Association for Applied Linguistics.
Elizabeth Kronk Warner is Dean and Professor of Law at the S.J. Quinney College of Law at the University of Utah. She was formerly Associate Dean and Professor of Law at the University of Kansas School of Law (KU), where she was also the Director of the Tribal Law and Government Center.
Dean Kronk Warner is a nationally recognized expert in the intersection of Environmental and Indian law. She has taught courses in Property, Indian, Environmental and Natural Resources Law, and supervised the KU Tribal Judicial Support Clinic. She has received several teaching excellence awards, co-authored several books on environmental issues and Native Americans, and has over 40 articles and book chapters to her credit. Dean Kronk Warner, a citizen of the Sault Ste. Marie Tribe of Chippewa Indians, served as an appellate judge for the tribe and as a district judge for the Prairie Band Potawatomi Tribe.
Dean Kronk Warner previously was an active member of the Federal Bar Association, serving on its national Board of Directors. In 2014, she received the Federal Bar Association President’s Award for leadership and extraordinary service, commitment, and guidance to the Federal Bar Association and its members. She is currently active in the American Bar Association, where she is co-chaired of the Native American Resources Committee. She holds a J.D. from the University of Michigan, a B.S. from Cornell University, and also studied at Nanyang Technological University in Singapore.
9:15am Dr. Jesse Egbert, Northern Arizona University
10:00am Professor Lawrence Solum, University of Virginia
Lawrence Solum is Professor of Law at the University of Virginia. His articles have appeared in philosophy journals, law reviews, and anthologies, including pieces in the Harvard Law Review, the University of Chicago Law Review, the University of Michigan Law Review, and the Yale Law Journal. He has spoken at conferences and universities throughout the world. He works on theories of legal interpretation and construction and is a leading proponent of constitutional originalism. His work has been cited by the United States Supreme Court, all of the circuits of the United States Courts of Appeal, and by several state Supreme Courts and in thousands of academic publications.
Statutory Originalism and Language
The term "originalism" is usually applied to theories of constitutional interpretation, but the two core ideas that unify the originalist family of constitutional interpretation and construction (fixation and constraint) apply with equal force to statutes. There are, however, differences. The situation of constitutional communication differs in significant respects from the situation of statutory communication. One important difference concerns the intended readership of constitutions and statutes. Constitutions are written for the public and the meaning of the constitutional text is its "public meaning." Some statutes are aimed at the public, but others are directed at more specialized audiences. For example, regulatory statutes are usually written for regulatory agencies and the businesses that will be subject to the regulations. For this reason, the "plain meaning" of a statue may not be its public meaning.
10:45am Dr. Tammy Gales, Hofstra University
Tammy Gales is an Associate Professor of Linguistics and the Director of Research at the Institute for Forensic Linguistics, Threat Assessment, and Strategic Analysis at Hofstra University, New York. She currently serves on the Executive Committee for the International Association of Forensic Linguists. She received her Ph.D. in Linguistics from the University of California, Davis, and performed her dissertation research on threatening communications with the Academy Group, the world’s largest private behavioral analysis firm of retired Supervisory Special Agents from the FBI. Her research interests cross the boundaries of language and the law and forensic linguistics. Within language and the law, she applies corpus linguistic methods to the interpretation of meaning in legal statutes and to disputed meanings in trademark cases. Within forensic linguistics, she applies corpus and discourse analytic methods to the examination of authorial stance in threatening communications as well as to other contexts such as the cross-examination of victims of sexual assault and parole board hearings in which certain populations are disproportionately denied parole. She has presented her research at universities such as Georgetown, Yale, and Princeton; has trained law enforcement from agencies across Canada and the U.S.; and has worked on criminal and civil cases for both the prosecution and defense.
Legal and Linguistic Approaches to Genericity: Perspectives and Protocols in Trademark Disputes
Recent decades have seen an increase in expert testimony given by linguists before the United States Patent and Trademark Office (USPTO) and in state and federal courts in the United States (Butters 2010). Previous linguistic scholarship on the topic of trademarks has mostly discussed the broad role of linguistics in the legal assessments of trademarks (e.g., Shuy 2002; Shuy 2012); specific questions within trademark disputes such as dilution (e.g., Butters 2008; Popoola n.d.); and the general benefits of certain sources of evidence such as dictionaries, surveys, and corpora in the analysis of trademark questions (e.g., Hotta and Fujita 2012; Kilgarriff 2015; Ullrich 2018). However, one of the primary questions in such cases is one of genericity: Is, or was, a term generic?
This talk outlines the legal and linguistic approaches to genericity, highlighting the multiple ways linguists approach the concept of genericness. For instance, as proper nouns, trademarks should possess certain features differentiating them from common nouns – e.g., proper nouns are not pluralized or preceded by an article and are written with initial capital letters (Kilgarriff, 2015), whereas common nouns can be inflected for number and can follow an article or preposition (Crystal 2008; Finegan 2015). In order to investigate such use, linguists have relied on a variety of resources – dictionaries of various types (e.g., contemporary general English dictionaries, industry specific dictionaries); on corpora varying widely in kind, size, and structure (e.g., specialized corpora of regional American English, monitor corpora such as the Corpus of Contemporary American English); or on other sources of evidence (e.g., consumer reviews, GoogleTrends). However, analyses of these resources have demonstrated that users of language do not always follow such categorical linguistic distinctions when referring to noun classes. Given the essential role played by decisions of genericity and descriptiveness – the two categories within the trademark paradigm that receive no to little protection from the USPTO – this paper presents two case studies that exemplify ways in which linguists have investigated the varied, sometimes conflicting, linguistic information in dictionaries, corpora, and select other resources in order to address questions about the generic status of putative protected terms.
References
Butters, R. R. 2008. A linguistic look at trademark dilution. Santa Clara Computer & High Tech. LJ 24: 507.
Butters, R. R. 2010. Trademarks: language that one owns. In M. Coulthard and A. Johnson (eds.) The Routledge Handbook of Forensic Linguistics. Routledge: 351–364.
Crystal, D. 2008. A Dictionary of Linguistics and Phonetics, 6th edn. Blackwell.
Finegan, Edward. 2015. Language: Its Structure and Use, 7th edn. Cengage.
Hotta, S., and Fujita, M. 2012. The psycholinguistic basis of distinctiveness in trademark law. In P. M. Tiersma and L. M. Solan (eds.) The Oxford Handbook of Language and Law. Oxford University Press: 478–488.
Kilgarriff, A. 2015. Corpus Linguistics in trademark cases. Dictionaries: Journal of the Dictionary Society of North America 36: 100–114.
Popoola, O. (n.d.) A dictionary, a survey and a corpus walked into a courtroom...: An evaluation of resources for adjudicating meaning in trademark disputes. Corpus, 600: 1721.
Shuy, R. W. 2002. Linguistic Battles in Trademark Disputes. Springer.
Shuy, R. W. 2012. Using linguistics in trademark cases. In P. M. Tiersma and L. M. Solan (eds.) The Oxford Handbook of Language and Law. Oxford University Press: 449–462.
Ullrich, Q. J. 2018. Corpora in the Courts: Using Textual Data to Gauge Genericness and Trademark Validity. Trademark Rep.108: 989.
11:30am Associate Chief Justice Thomas Lee, Utah Supreme Court
Thomas R. Lee serves as Associate Chief Justice of the Utah Supreme Court. He is a graduate (with High Honors) of the University of Chicago Law School and a former law clerk to Justice Clarence Thomas and to Judge J. Harvie Wilkinson III. Before his appointment to the Utah Supreme Court, Lee was a full-time law professor at Brigham Young University. In his spare time, he teaches as a Lecturer at Brigham Young, Harvard, and the University of Chicago.
Lee has written extensively at the intersection of law and linguistics. His judicial opinions and academic scholarship advocate the use of theories and tools used by linguists in interpreting the language of the law. His judicial and academic work on law and language has been cited in a range of federal and state courts. His contributions to this field will be synthesized in a forthcoming monograph, Law & Corpus Linguistics (Oxford Univ. Press 2020).
During his years as a full-time law professor, Lee developed a part-time appellate practice, arguing cases in federal courts throughout the country and in the United States Supreme Court. In 2004-05, Justice Lee served as Deputy Assistant Attorney General in the Civil Division of the U.S. Department of Justice.
Corpus Linguistics in the Courts: Critiques, Responses, and the Path Forward
Lawyers and jurists have long sought to discern the “ordinary meaning” of the language of the law. In interpreting statutes, constitutional provisions, and contracts, our courts claim to be applying the “plain” or “ordinary” meaning of legal language. But judicial tools for discerning such meaning have long fallen short. The judge’s traditional toolbox includes dictionaries, etymology, and old-fashioned judicial intuition—which may have a role but all fall short.
In the past decade a few judges have begun to utilize additional tools, borrowed from the field of linguistics, to sharpen this inquiry. In opinions in a few state supreme courts and federal courts of appeals, judges have proposed to utilize corpus linguistic tools of collocation analysis and concordance line analysis to assemble transparent evidence of ordinary usage of legal language. Because premises of “ordinary meaning” seem to turn on actual usage of language by ordinary people, judges have suggested that the law’s assessment of ordinary meaning should be informed by statistical analysis of actual language usage in naturally occurring samples of language—in corpora like the Corpus of Contemporary American English, the News on the Web Corpus, or the Corpus of Historical American English.
This move has prompted a series of critiques and concerns. Some judges have suggested that there is a judicial ethics problem with a judge conducting his own corpus linguistic analysis without the benefit of expert witness testimony. Others have asserted that the data assembled from a corpus cannot, in any event, inform the “ordinary meaning” questions posed in the law. And some commentators have questioned the statistical or scientific relevance or salience of corpus analysis in law, suggesting the possible need for alternative approaches—the use of different corpora, or other means of empirical inquiry (such as the use of human-subject surveys).
This paper summarizes these developments and describes and responds to critiques of the corpus linguistics movement in the courts. It first explains that judges are as ethically free to use corpus linguistics tools to inquire into ordinary meaning as they are to consult various dictionaries or perform historical research into the original meaning of a provision of the Constitution. It then concedes that refinements in corpus methodology are needed to improve on the utility of these methods in the law of interpretation, but notes that these tools fare better than any other set of tools used to date by judges. In conclusion, the paper highlights misunderstandings in the empirical criticisms of the use of corpus methods, as well as shortcomings in the proposed use of human-subject surveys in this field.
12:15pm Closing Remarks - Professor William Eggington, Brigham Young University
2019 - What Lawyers Need to Know About Language and Linguistics
8:30am Check-in & Light Breakfast
9:00am Welcome, Scott Jarvis, University of Utah
Scott Jarvis
Scott Jarvis is Professor and Chair of the Department of Linguistics at the University
of Utah. His research concentrations include second language acquisition and forensic
linguistics.
His research focuses inter alia on detecting native language influence in nonnative speakers’ use of a second language,
and the ways that speakers with limited English proficiency understand and misunderstand
the Miranda Warning. His recent work appears in articles published in Bilingualism: Language and CognitionLanguage Learning, and Language Testing, as well as in collected volumes published by Cambridge University Press, Multilingual
Matters, Oxford University Press, Routledge, Springer, and Wiley.
Welcome
Prof. Jarvis will welcome the audience, introduce the theme of the symposium (i.e., what lawyers need to know about language and linguistics), introduce the speakers and their topics, and indicate how the keynote addresses relate to the theme of the symposium and how they tie into each other.
9:05am Keynote Speaker, Professor Roger W. Shuy Distinguished Research Professor of Linguistics, Emeritus Georgetown University
Professor Roger W. Shuy
Roger W. Shuy holds the title of Distinguished Research Professor of Linguistics, Emeritus, from Georgetown University, and is recognized as the world’s leading forensic linguist. After beginning his career as a linguistic geographer, he moved into the field of sociolinguistics and founded the sociolinguistics doctoral program at Georgetown University, where he also served as a full professor of linguistics for 30 years and chaired the Department of Linguistics for several years. Since the 1980s, his work has been almost entirely on the interactions of language and law, which remains his primary concern to this day. He is the author of 43 published books and 208 articles, and has consulted on some 600 cases and testified as a linguistics expert witness 54 times in criminal and civil trials (in 26 states), as well as before the US Senate and US House of Representatives in impeachment trials of US Senators and Federal Judges and in International Criminal Tribunal trials. He has also provided sworn affidavits and depositions in some 75 law cases.
Going Deeper Than Words
Most of the linguistic work on authorship analysis deals with small but important chunks of text such as words, spelling, punctuation, and grammar. These types of evidence generally suffice for their purposes, but there are also cases involving bribery, solicitation, fraud, and others that usually contain much larger amounts of language evidence. These types of evidence can be found in police interviews, courtroom examinations, and evidence gathered surreptitiously. In such cases, the analysis must deal with the way the smaller linguistic features fit into the overall context of the entire discourse in which they are found.
Prof. Shuy’s approach to cases in which large amounts of evidence exist is to ask the following questions: What do the participants think they understand about what they are talking about? What schemas do they reveal? What topics do they bring up that reveal what they believe the conversation is about? How do their speech acts support this? What conversational strategies are used to advance the speakers’ conversational goals? And finally, how do the smaller smoking gun language features of lexicon and grammar (especially referencing) fit into the overall discourse?
This presentation demonstrates this type of analysis. It calls on the analyst’s knowledge of speech events (borrowed from cultural anthropology), schema theory (borrowed from psychology), topic analysis (from discourse analysis), speech act theory (borrowed from philosophers of language), and conversational strategies (borrowed from rhetoric). The more familiar linguistic features of lexicon and grammar occur within this context and can best be understood by situating them in the larger discourse in which they occur.
9:55am Questions and Discussion
10:05am Keynote Speaker, Professor Janet Ainsworth John D. Eshelman Professor of Law Seattle University
Janet Ainsworth
Janet Ainsworth earned her J.D., cum laude, at Harvard Law School and currently holds the title of John D. Eshelman Professor of Law at Seattle University. Her scholarship has engaged a variety of issues, including the application of linguistics research to legal issues, criminal procedure, feminist critical theory, juvenile law, comparative law, imperial Chinese law, and law and social science. She is the author of numerous book chapters and articles appearing both in peer-reviewed social science journals and in law reviews including the Yale Law Journal, the Cornell Law Review, and the Washington University Law Quarterly. Professor Ainsworth has also served on the Executive Committee of the Criminal Justice Section and as chair of the Law and Anthropology Section of the AALS, has served on several committees of the Law and Society Association, as well as Vice President of the International Association for Forensic Linguists. Her pro bono activities include serving on the Board of Directors of the Seattle-King County Public Defender, writing amicus curiae briefs to the Washington State Supreme Court and the United States Supreme Court, lecturing at dozens of Continuing Legal Education seminars, serving as a member of numerous state criminal justice task forces, and serving as consultant to the National Association of Criminal Defense Lawyers, from which she received its Outstanding Service Award in recognition of her contributions.
Power and Pragmatics in Interactions With the Police: A Berlitz Guide to Civilians for Talking to Cops
Many interactions between ordinary civilians and law enforcement officers involve questions being asked and answers being sought. Question and answer sequences are part of everyday life, and are governed by certain social norms and rules. While most people may not be consciously aware of them, we do apply certain conventions in how we ask questions and how we answer them. Unfortunately, the rules of engagement when we interact with police officers can have drastic consequences if we apply those ordinary rules of conversational interaction in those contexts. Two common examples are these: how do people respond when a police officer asks to search their property, and how do people respond when they are read their Miranda rights just before being interrogated by the police. Those interactions, occurring in a backdrop of the power asymmetry between ordinary civilians and police officers, can result in attempts by people to exercise their constitutional rights being ignored. Courts, however, tend to interpret the words of police officers generously and the words of those they are questioning with hyper-formal strictness. As a result, important constitutional rights turn out to be perilously easy to waive and nearly impossible to successfully claim.
10:50am Questions and Discussion
11:00am Keynote Speaker, Honorable Lynn W. Davis Judge, Fourth District Court, State of Utah
Honorable Lynn W. Davis
Judge Lynn W. Davis has served as a judge in Utah for 32 years and is the 5th longest seated judge in the history of the State of Utah. He was appointed to the Fourth Circuit Court in April 1987 and the Fourth District Court in June 1992 by Governor Norman H. Bangerter. He is the recipient of the Utah State Bar Distinguished Service Award and several other judicial awards, and has been a passionate advocate for equal access to the courts for Limited English Proficiency individuals and has published and lectured across the country on this subject. He was also part of the team that created the Code of Responsibility for Court Interpreters that has been adopted by every state. One of his published articles is also now mandatory reading for every new judge in America.
Due Process for People with Limited English Proficiency
Constitutional law affords all defendants the right to represent themselves. However, this is often difficult, if not impossible, for Limited English Proficiency individuals unless they are assisted by a highly qualified interpreter and by legal counsel who understand and appreciate the challenges. This presentation will focus on case law from across the country involving LEP proficiency issues at various stages of both civil and criminal litigation. Judge Davis will address the skills and qualifications that are needed by court interpreters, will add personal judicial observations and recommendations, and will also share insights from practicing court interpreters.
11:45am Questions and Discussion
12:00pm Closing Remarks, Professor William G. Eggington Ludwig, Weber, Siebach Humanities Professor Brigham Young University
Dr. William G. Eggington
Dr. William G. Eggington, originally from Australia, is an applied sociolinguist with research interests in language planning and policy, intercultural rhetoric and forensic linguistics. His focus on the sociolinguistics of minority language speakers led to an interest in forensic linguistics. As such, he has consulted and testified as an expert witness in numerous criminal and civil legal cases involving forensic linguistics with an emphasis on minority language issues such as limited English speaker’s comprehension of legal rights and interrogation language, hate crime determination, trade mark dilution, contract language disputes, and authorial attribution. He is currently Ludwig, Weber, Siebach Humanities Professor, BYU College of Humanities. During the 2013-2014 academic year, he was a visiting scholar at Kyung Hee University, Global Campus, South Korea.
Dr. Eggington has written or co-edited six books and has produced numerous journal articles and book chapters in volumes published by Cambridge, Multilingual Matters, Addison Wesley, Holt Rinehart, Macmillan, H. Buske, Harvard Latino Law Review and various national and international university and professional association presses. From 2003 to 2006, he served as a member of the board of directors of TESOL (Teachers of English to Speakers of Other Languages) and chaired the TESOL 2005 conference in San Antonio, Texas with approximately 8,000 participants. Prior to coming to BYU in 1989, he taught applied linguistics at the Northern Territory University in Australia. He received his MA and PhD in Linguistics from the University of Southern California.
Professor William G. Eggington
Prof. Eggington will recap the main points from each keynote address, identify common strands between them, relate these back to the theme of the conference, and restate how a knowledge of the scientific principles and empirical findings from the field of linguistics can help lawyers and judges improve their abilities to analyze and evaluate linguistic evidence, protect individuals’ rights, and allow individuals with limited English proficiency to participate more fully in the legal process.
2018 - Forum on Language and the Law: Non-native Speakers of English in the Legal System
9:00am Welcome, Scott Jarvis, University of Utah
Scott Jarvis
Scott Jarvis was born in Arizona and grew up in Missouri. He earned an BA in Linguistics at Brigham Young University in 1991, an MA in Applied Linguistics at Indiana University in 1993, and a PhD in Linguistics at Indiana University in 1997. His PhD concentration was Second Language Acquisition, and his PhD minor was Semiotics.
Scott was hired by the Department of Linguistics at Ohio University in 1998 and worked there until 2017, receiving promotions to the rank of Associate Professor in 2003 and Professor in 2013. He also served as Department Chair for five years, from 2004 until 2009. From the middle of 2009 until the middle of 2010, he spent his sabbatical in the Centre for Applied Language Studies at the University of Jyväskylä, Finland. He began working in the Department of Linguistics at the University of Utah in 2017, where he holds the rank of Professor and is currently serving as Department Chair.
His research concentrations include crosslinguistic influence and lexical diversity. In the domain of crosslinguistic influence, he has developed frameworks for exploring conceptual transfer and confirming crosslinguistic influence in cases where it is difficult to detect or is confounded by competing variables. In the domain of lexical diversity, he has concentrated on developing an adequate, multidimensional construct definition of this phenomenon and an accompanying set of measures that account for how lexical diversity is perceived and how it contributes to the quality of both spoken and written language. He has published articles in several of the top journals in Second Language Acquisition and Applied Linguistics, has co-edited three books, and has co-authored a book with Aneta Pavlenko titled Crosslingusitic Influence in Language and Cognition. He is currently conducting research with Aneta Pavlenko and Beth Hepford on the relationship between language proficiency and non-native speakers’ understanding of the Miranda warning.
Scott’s professional service has given him the opportunity to serve in a number of positions, including but not limited to the role of Chair of the Research Interest Section for TESOL (2001-2002), Associate Journal Editor for Language Learning (2007-2011), Board Member and Associate Executive Director for Language Learning (2011-2015), Executive Committee Member for the American Association for Applied Linguistics (2014-2016), and Editorial Board Member for various journals. He is currently the Executive Director for Language Learning and the Chair of the Resolutions Committee for the American Association for Applied Linguistics.
9:05am Introduction, Dr. Aneta Pavlenko, Center for Multilingualism, University of Oslo
Dr. Aneta Pavlenko
Dr. Aneta Pavlenko grew up in Kiev, Ukraine and left the USSR just before it collapsed (a coincidence, not a consequence). After a short stay in a refugee settlement in Torvaianica, Italy, she came to the United States. While in graduate school, she supported herself and her son by working as a case worker and medical and court interpreter for the Refugee Assistance Program in Ithaca, New York. She wrote her dissertation on eyewitness memory in bilinguals and received a Ph.D. in General Linguistics at Cornell University in 1997. Between 1998 and 2016 she was a Professor of Applied Linguistics at Temple University, Philadelphia and in 2014-2015 she served as President of the American Association for Applied Linguistics. Dr. Pavlenko’s research examines the relationship between multilingualism, cognition, and emotions, including in forensic contexts. She has lectured widely in North America, Europe and Asia and has authored more than a hundred articles and ten books, the most recent of which is Thebilingual mind and what it tells us about language and thought (Cambridge University Press, 2014). She is the winner of the 2006 BAAL Book of the Year award and the 2009 TESOL Award for Distinguished Research. She has testified in court as an expert in forensic linguistics and co-authored the Guidelines for communicating rights to non-native speakers of English.
10:30am Speaker, Bill Eggington, Brigham Young University
Dr. William G. Eggington
Dr. William G. Eggington, originally from Australia, is an applied sociolinguist with research interests in language planning and policy, intercultural rhetoric and forensic linguistics. His focus on the sociolinguistics of minority language speakers led to an interest in forensic linguistics. As such, he has consulted and testified as an expert witness in numerous criminal and civil legal cases involving forensic linguistics with an emphasis on minority language issues such as limited English speaker’s comprehension of legal rights and interrogation language, hate crime determination, trade mark dilution, contract language disputes, and authorial attribution. He is currently Ludwig, Weber, Siebach Humanities Professor, BYU College of Humanities. During the 2013-2014 academic year, he was a visiting scholar at Kyung Hee University, Global Campus, South Korea.
Dr. Eggington has written or co-edited six books and has produced numerous journal articles and book chapters in volumes published by Cambridge, Multilingual Matters, Addison Wesley, Holt Rinehart, Macmillan, H. Buske, Harvard Latino Law Review and various national and international university and professional association presses. From 2003 to 2006, he served as a member of the board of directors of TESOL (Teachers of English to Speakers of Other Languages) and chaired the TESOL 2005 conference in San Antonio, Texas with approximately 8,000 participants. Prior to coming to BYU in 1989, he taught applied linguistics at the Northern Territory University in Australia. He received his MA and PhD in Linguistics from the University of Southern California.
Language Proficiency and Citizens’ Rights
We are living in a very recognizable age of proximity where, to a degree never experienced previously, people from vastly different language and cultural backgrounds are interacting proximal to each other. Consequently, high stakes social institutions that demand advanced, often specialized, English language proficiency such as those required by society's educational and legal domains are struggling to provide citizen’s rights, equitable services and protections as demanded not only by our social values but also, in the U.S., by the 14th amendment. This paper reports on a range of successes and failures encountered by America's legal system with respect to its interactions with non-native English speakers including challenges associated with measuring the English language proficiency of defendants and witnesses as well as the inability to deal with more subtle inter-language strategies such as feigned comprehension and intercultural pragmatic failure. Many of the issues discussed come from actual legal cases where the presenter has served as a forensic linguist. The paper will conclude with recommendations that may lead to our legal institutions being better able to meet the demands of our multilingual society in this age of proximity.
11:00am Speakers
Dr. Aneta Pavlenko, Center for Multilingualism, University of Oslo
Scott Jarvis, University of Utah
Elizabeth Hepford, Temple University
Dr. Aneta Pavlenko
Dr. Aneta Pavlenko grew up in Kiev, Ukraine and left the USSR just before it collapsed (a coincidence, not a consequence). After a short stay in a refugee settlement in Torvaianica, Italy, she came to the United States. While in graduate school, she supported herself and her son by working as a case worker and medical and court interpreter for the Refugee Assistance Program in Ithaca, New York. She wrote her dissertation on eyewitness memory in bilinguals and received a Ph.D. in General Linguistics at Cornell University in 1997. Between 1998 and 2016 she was a Professor of Applied Linguistics at Temple University, Philadelphia and in 2014-2015 she served as President of the American Association for Applied Linguistics.
Dr. Pavlenko’s research examines the relationship between multilingualism, cognition, and emotions, including in forensic contexts. She has lectured widely in North America, Europe and Asia and has authored more than a hundred articles and ten books, the most recent of which is Thebilingual mind and what it tells us about language and thought (Cambridge University Press, 2014). She is the winner of the 2006 BAAL Book of the Year award and the 2009 TESOL Award for Distinguished Research. She has testified in court as an expert in forensic linguistics and co-authored the Guidelines for communicating rights to non-native speakers of English.
Scott Jarvis
Scott Jarvis was born in Arizona and grew up in Missouri. He earned an BA in Linguistics at Brigham Young University in 1991, an MA in Applied Linguistics at Indiana University in 1993, and a PhD in Linguistics at Indiana University in 1997. His PhD concentration was Second Language Acquisition, and his PhD minor was Semiotics.
Scott was hired by the Department of Linguistics at Ohio University in 1998 and worked there until 2017, receiving promotions to the rank of Associate Professor in 2003 and Professor in 2013. He also served as Department Chair for five years, from 2004 until 2009. From the middle of 2009 until the middle of 2010, he spent his sabbatical in the Centre for Applied Language Studies at the University of Jyväskylä, Finland. He began working in the Department of Linguistics at the University of Utah in 2017, where he holds the rank of Professor and is currently serving as Department Chair.
His research concentrations include crosslinguistic influence and lexical diversity. In the domain of crosslinguistic influence, he has developed frameworks for exploring conceptual transfer and confirming crosslinguistic influence in cases where it is difficult to detect or is confounded by competing variables. In the domain of lexical diversity, he has concentrated on developing an adequate, multidimensional construct definition of this phenomenon and an accompanying set of measures that account for how lexical diversity is perceived and how it contributes to the quality of both spoken and written language. He has published articles in several of the top journals in Second Language Acquisition and Applied Linguistics, has co-edited three books, and has co-authored a book with Aneta Pavlenko titled Crosslingusitic Influence in Language and Cognition. He is currently conducting research with Aneta Pavlenko and Beth Hepford on the relationship between language proficiency and non-native speakers’ understanding of the Miranda warning.
Scott’s professional service has given him the opportunity to serve in a number of positions, including but not limited to the role of Chair of the Research Interest Section for TESOL (2001-2002), Associate Journal Editor for Language Learning (2007-2011), Board Member and Associate Executive Director for Language Learning (2011-2015), Executive Committee Member for the American Association for Applied Linguistics (2014-2016), and Editorial Board Member for various journals. He is currently the Executive Director for Language Learning and the Chair of the Resolutions Committee for the American Association for Applied Linguistics.
Elizabeth Hepford
Elizabeth Hepford graduated with her doctorate in Applied Linguistics from Temple University in Philadelphia, PA in 2017. Her dissertation research focused on the development of complexity, accuracy, and fluency under the theoretical framework of Complex Dynamic Systems. Her other research interests include forensic linguistics and language commodification. She received her Masters in TESOL from Arizona State University where her focus was phonology. She is currently teaching in the TESOL Master’s Program and the Intensive English Language Program at Temple University.
From 2009 to 2011, Elizabeth was an English Language Fellow in Albania where she taught English as a Foreign Language at Luigi Gurakuqi University and conducted TESOL training for the US Embassy. From 2006-2009, she taught English as a Foreign Language and TESOL methods at Universidad de las Américas and Tecnológico de Monterrey in Puebla, Mexico. She began her teaching and linguistics career at as a Peace Corps Volunteer in Arseniev, Russia.
How Non-native Speakers of English Understand—and Misunderstand—Their Miranda Rights
The purpose of the Miranda rights is to ensure that suspects know their fundamental rights under the law, including the right not to incriminate themselves. Research shows that even native speakers of English do not always understand their rights (Rogers et al., 2010, 2011) and are vulnerable to trivialization tactics used by the police (Leo, 2008; Scherr & Madon, 2013). The problems are even greater among speakers with limited proficiency in English (Bowen, 2017; Eades, 2010; Pavlenko, 2008; Pavlenko et al., 2016) but until now there have been no empirical studies to examine linguistic challenges faced by this population.
The purpose of the present study was to compare understanding of the Miranda rights by L1 English speakers (n = 50) with that of L2 English speakers: L1 Arabic (n = 50), L1 Chinese (n = 51), and other L1s (n = 40). Using the instruments developed and validated by Rogers and colleagues (2010), we examined participants’ Miranda vocabulary comprehension, listening comprehension, and comprehension of individual rights and the function of the Miranda waiver.
The findings revealed that even advanced-level speakers do not fully understand the Miranda rights. Predictably, their performance was affected by the L1 background, level of proficiency, sentence length and complexity, word frequency and type (everyday vs legal vocabulary). Unexpectedly, the participants did not realize that they did not understand – drawing on their partial knowledge of homonyms (e.g., right-write, waive-wave), polysemous words (e.g., advice, right, exercise) and false and partial cognates (e.g., appointment vs Spanish apuntar) they constructed alternative meanings that created an ‘illusion of understanding’ (e.g., a lawyer will be appointed to represent you > you have to make an appointment with a lawyer in prison). We will discuss the implications of these findings for communication of rights in police interviews.
11:30am Speaker, Margaret van Naerssen, Immaculata University
Margaret van Naerssen
Ph.D. Applied Linguistics/ Language Acquisition, University of Southern California, is now an Independent Consultant in Applied Linguistics. She has taught in and administered teacher training programs in ESL/EFL/Bilingual Studies. She has also coordinated a UCLA/ Chinese Academy of Sciences English for Science and Technology Center in Beijing. She does occasional assignments with US Department of State and other international organizations. Since 1997, as a consultant/ expert, she has applied linguistics in forensic contexts (federal, state, local) in cases involving murder, drugs, rape, money laundering, robbery, kidnapping, fraud, and DUI. Most have involved non-native speakers of English.
Faking Language Proficiency
In many legal cases, claims by non-native speakers (NNSs) about their problems in understanding/speaking are probably truthful. However, some may try faking a lower than truthful second language (L2) proficiency level for a perceived legal advantage. This issue can impact various parts of a case, including the communication of Miranda rights. Thus, in any case involving a NNS it is important that a language assessment/linguistics expert be prepared for both sides of the issue. Almost invariably the prosecution will challenge with, “How do you know the defendant wasn’t faking a lower language proficiency?”
In police contexts, such claims have also been referred to as “malingering” (borrowing from psychology). Eggington, van Naerssen and several others have informally discussed the issue of terms and specific strategies for examining the possibility of “faking.” In the presenter’s opinion, “intentional underperformance” most accurately distinguishes use from “underperformance,” which could also be the effects of stressful conditions and exhaustion.
Those with some linguistic awareness might have formed opinions based on their experience working with non-native speakers. However, van Naerssen argues that to maintain courtroom credibility for linguistics (including language assessment), analysis strategies that have some basis in research are important in breaking down misbeliefs about language use and intentional misuse.
Four strategies are briefly described: 1) analysis of multiple language samples for inconsistencies; 2) retelling of own story; 3) an alternating language retell of a story in L1 and L2; and 4) and being able to spot errors in one’s story. The likely strength of findings can be examined in relation to other language use in the legal case and with appropriate language proficiency assessment.
However, the best professional efforts by qualified linguists still may not overcome judges’ or juries’ a) misunderstanding of language development and language use by NNSs; b) personal biases toward a particular population; or c) misbelief that controlled experiments can be used to determine “faking.” Any of these might cause fact-finders to assume the intention of “faking.”
2:00pm Speaker, Keith Walters, Portland State University
Keith Walters
Keith Walters is currently professor in the Department of Applied Linguistics at Portland State University in Portland, OR. Prior to coming to PSU in 2006, he taught in the Linguistics Department at the University of Texas at Austin (1991-2006) and in the English Department at the Ohio State University (1988-1991). This past summer, Ed Finegan and he co-taught an introductory-level course in forensic linguistics at the LSA Summer Institute in Lexington, KY. Walters has served as an expert in cases involving “Speak English Only” rules in the workplace, the assessment of a defendant’s likely ability to have understood his Miranda Rights, libel, authorship attribution, medical malpractice, and the question of whether a series of text messages in Arabic should be seen as threats.
Much of Walters’ research focuses on issues of language and identity in the Arab world, particularly Tunisia, where he served as a Peace Corps volunteer teaching English as a foreign language. He has also taught English in Guinea and trained teachers in both those countries, Morocco, the West Bank, Vietnam, and the US. He is co-author of two widely used freshman composition textbooks.
Speak English Only Rules and Other Language Restrictive Policies in the Workplace: The View from Sociolinguistics
In the US, it is legally permissible under certain conditions for an employer to require employees to speak only English or some other language in the workplace. Such restrictive policies on language use are discussed as part of employer guidelines published by the Equal Employment Opportunity Commission (the EEOC), the federal agency created by the Civil Rights Act of 1964 to ensure workplaces free from discrimination based on race, ethnicity, or national origin, among other criteria.
These guidelines clearly presume that under certain delimited circumstances, employers may have a justifiable need to restrict the language(s) used in a workplace. The guidelines also make clear, however, that such rules are to be highly scrutinized because they easily become pretexts for discrimination. As the most recent guidelines (2016) noted, “Restrictive language policies implicate national origin because an individual's primary language is closely tied to his or her cultural and ethnic identity.” A common way for legal theorists to frame the relevant set of legal issues involved is “balancing business needs and employee rights,” the subtitle of Piatt’s (1993) book.
Drawing on my experience as expert witness in three such cases, two involving the EEOC as named plaintiff, and the existing research on these rules, this presentation outlines the legal issues that have emerged in such cases, considering them from the perspective of sociolinguistic research on bi- and multilingualism.
References
Equal Employment Opportunity Commission. (2016). EEOC enforcement guidance on national origin discrimination. https://www.eeoc.gov/laws/guidance/national-origin-guidance.cfm
Piatt, Bill. (1993). Language on the job: Balancing business needs and employee rights. Albuquerque, NM: University of New Mexico press.
2:30pm Speaker, Melissa Wallace, University of Texas at San Antonio
Melissa Wallace
Melissa Wallace received her Ph.D. in translation and interpreting studies from the Universidad de Alicante, Spain. A certified court interpreter and certified healthcare interpreter, Wallace is currently serving a 5-year term on the Licensed Court Interpreter Advisory Board of the Judicial Branch Certification Commission for the Supreme Court of Texas. She has been an active member of the Home for Trainers Webinars Work Group at the National Council on Interpreting in Health Care since 2012, and is a board member of the Society for the Study of Translation and Interpretation (SSTI), the non-profit educational and research foundation of the National Association of Judicial Interpreters and Translators. Her research focuses on indicators of aptitude on court interpreter certification exams, accreditation exam models, and interpreter and translator training. Wallace carried out research on court interpreting certification models in Finland in 2016 as the Fulbright-University of Tampere Scholar. She is an Assistant Professor of TI Studies at the University of Texas at San Antonio where she directs the graduate certificate program in translation and interpreting studies.
Beyond Certification: Gauging the Quality of Certified Interpreters in US Courtrooms
Identifying and certifying competent court interpreters represents one of the cornerstones of due process in the US judicial system, as to understand (and to be understood by) the courts is indispensable to full and active participation in one’s own defense.
Importance notwithstanding, barriers to the provision of quality language services in the justice system are as varied as they are ubiquitous and well-documented. These can range from a lack of compliance with existing language access legislation (Wallace 2015), difficulty in training, recruiting and credentialing qualified practitioners, the use of ad hoc or inadequately tested interpreters (Giambruno 2016), a reluctance to pay for language services, outsourcing, and deficient accreditation schemes (Ozolins 2016). Some systemic challenges are directly specific to administering interpreting tests, including assembling a team of subject matter experts to design the constructs of the exams, building in protocols to assure rating consistency, or assuring equitable testing for candidates in all language combinations tested (see Skaaden & Wadensjö, 2014). Admittedly, other barriers to quality exist that fall fully outside the realm of education or testing, such as anti-immigrant sentiment or a lack of political will and administrative action (Giambruno 2016).
Certification as a court interpreter by the National Center for State Courts guarantees a minimal threshold of interpreter competence. Nonetheless, what level of quality are non-English participants in the courtroom receiving from their certified interpreters? This presentation will critically examine limitations to the currently used performance-based model of accrediting court interpreters in the United States by identifying what is and is not currently assessed on certification exams. The Consortium exams, as they are known, focus almost exclusively on linguistic aspects of examinees’ renditions, intentionally excluding pragmatic and extra-linguistic factors as well as ethical decision-making. In addition to speaking and listening skills not currently assessed, we shall examine the intellectual and dispositional traits as well as the communicative, interpersonal, and cross-cultural competencies that are considered essential to interpreter competence but which are not currently accounted for. This presentation will be of particular interest to judges, attorneys and language access program managers who recognize limitations in current accreditation schemes, providing tools by which to gauge interpreting competence in the courtroom.
References
Giambruno, C. (2016). Quality assessment and political will. Language and Law / Linguagem E Direito, 3 (2), 116-134.
Ozolins, U. (2016). The long road to effective court interpreting. <em>Language and the Law / Linguagem e Direito, 3 (2), 98-115.
Skaaden, H., & Wadensjö, C. (2014). Some considerations on the testing of interpreting skills. In C. Giambruno (Ed.), Assessing legal interpreter quality through testing and certification: The QUALITAS project (pp. 17-26). Sant Vicent del Raspeig, Spain: Publicaciones de la Universidad de Alicante.
Wallace, M. (2015). A further call to action: Training as a policy issue in court interpreting. The Interpreter and Translator Trainer, 9 (2), 173-187. doi:10.1080/1750399x.2015.1051769
3:00pm Speaker, Elizabeth Hepford, Temple University
Elizabeth Hepford
Elizabeth Hepford graduated with her doctorate in Applied Linguistics from Temple University in Philadelphia, PA in 2017. Her dissertation research focused on the development of complexity, accuracy, and fluency under the theoretical framework of Complex Dynamic Systems. Her other research interests include forensic linguistics and language commodification. She received her Masters in TESOL from Arizona State University where her focus was phonology. She is currently teaching in the TESOL Master’s Program and the Intensive English Language Program at Temple University.
From 2009 to 2011, Elizabeth was an English Language Fellow in Albania where she taught English as a Foreign Language at Luigi Gurakuqi University and conducted TESOL training for the US Embassy. From 2006-2009, she taught English as a Foreign Language and TESOL methods at Universidad de las Américas and Tecnológico de Monterrey in Puebla, Mexico. She began her teaching and linguistics career at as a Peace Corps Volunteer in Arseniev, Russia.
Everyone Has the Right to Understand: ESL Instruction Techniques for Assisting English Language Learners in Understanding the Miranda Warnings
The Miranda Warnings are given to suspects of a crime when taken into custody to ensure that they understand their fundamental legal rights, including the rights to remain silent and to have an attorney present during questioning. However, research shows that due to limited English proficiency and cultural differences, non-native English speakers are particularly vulnerable to misunderstandings and police questioning tactics (Pavlenko, 2008; The Communication Rights Group, 2016). ESL instructors can help ‘level the playing field’ by including information about the Bill of Rights, the U.S. legal system, and the Miranda Rights in their lessons. This presentation points out three areas in which ESL teachers can focus their efforts: the U.S. legal context, legal vocabulary, and sentence complexity. Techniques and materials based on scholarly research and teaching experience will be proposed that address each of these issues. In addition, suggestions will be offered on how to prepare non-native speakers of English for the pressures of high stakes legal situations such as police questioning.
3:30pm General Discussion
